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Judgment
M.C. Tripathi, J.
Heard Shri Ashok Khare, Senior Advocate assisted by Shri J.P. Singh, learned counsel for the petitioners; learned Standing Counsel for State respondent Nos. 1 and 2 and Shri Manish Dev Singh, learned counsel for the contesting respondent No. 4.
By means of this writ petition, the petitioners have prayed for quashing the impugned order dated 29.4.2015 passed by the Assistant Registrar, Firms, Societies and Chits, Varanasi-respondent No. 2 and have further prayed for direction commanding the respondent No. 3 to pass a fresh order after hearing the parties concerned and to hold the election of the Society exercising powers under Section 25(2) of the Societies Registration Act, 1860 within specified time.
Brief facts giving rise to the present case are that ''Naldeo Kuldeo Purva Madhyamik Vidyalaya, Belaon, District Jaunpur'' is a Society registered under the Societies Registration Act, 1860 (hereinafter referred to as the Act). The Society has its duly approved by laws. In the year 1977 for the first time, a dispute arose in the Society. On 15.5.1981 the Assistant Registrar, Firms, Societies and Chits, Varanasi referred the dispute to the Prescribed Authority under Section 25(1) of the Act. On 06.1.1996 the Prescribed Authority passed an order holding that the reference dated 15.5.1981 had become infructuous and returned the reference with a direction to the Assistant Registrar to consider the election of Shri Dharnidhar Singh and also his claim for renewal of the registration. On 2.12.1996 the Assistant Registrar recognized the election of Shri Dharnidhar Singh. A Writ Petition No. 2444 of 1996 was filed by Shri Indra Pal Singh challenging the order of the Prescribed Authority. The said writ petition was disposed of on 19.1.1996 with direction to the Assistant Registrar to act in accordance with law and consider the question of renewal of registration of the Society moved by Shri Dharnidhar Singh after affording opportunity to the contesting respondents. On 2.12.1996 the Assistant Registrar recognised Shri Dharnidhar Singh as Manager. Shri Rama Shanker Singh-respondent No. 3 filed a Writ Petition No. 41757 of 1996 challenging the order dated 2.12.1996. The said writ petition was dismissed on 29.4.1997. The judgment dated 29.4.1996 as well as the order of the Assistant Registrar dated 2.12.1996 attained finality and Shri Dharnidhar Singh continued to function as Manager and the renewal was granted.
On 22.1.1996 the election was held in which one Shri Bali Ram Singh was elected as President; Shri Dharnidhar Singh as Manager and Shri Shree Prakash Singh as Deputy Manager. On 27.7.1999 Shri Dharnidhar Singh resigned and as per bye laws Shree Prakash Singh being Deputy Manager was allowed to function as Manager. The term of three years expired but no election was held by the outgoing Committee. The members of the general body decided to hold election and the election was held by the general body on 2.2.2002 in which one Bali Ram Singh was elected as President, and Vinay Kumar Singh-petitioner No. 2 as Manager of the Society. An Authorized Controller was appointed in the College, who held the elections under the supervision of the District Inspector of Schools, Jaunpur. In this election Shri Bali Ram Singh was elected as President and Shri Vinay Kumar Singh as Manager. On 30.7.2003 the Assistant Registrar referred the dispute of the year 2000 to the Prescribed Authority. On 9.11.2006 the petitioner No. 2 moved an application before the Prescribed Authority that the term of three years had already expired and therefore, the reference had become infructuous. On 14.11.2006 the Prescribed Authority rejected the objection of the petitioner on 29.1.2007 and upheld the election of Shri Rama Shanker Singh-respondent No. 3. Aggrieved with the said order, the petitioner filed another Writ Petition No. 9961 of 2007, in which an interim order was passed on 23.2.2007 restraining the respondents from taking any further action in pursuance of the order of the Prescribed Authority dated 29.1.2007. On 17.7.2013 the said writ petition was dismissed as infructuous with observation that decision of the Prescribed Authority dated 29.1.2007 will have no bearing for any further election.
The respondent No. 4 submitted an election proceeding dated 10.6.2012 with list of newly elected office bearers. The petitioner No. 2 also submitted his election proceeding dated 21.1.2013 with the list of elected office bearers. On 27.7.2013, the Assistant Registrar issued notices to the petitioner No. 2 as well as respondent No. 3 fixing 17.8.2013 for hearing. The petitioner No. 2 submitted his case in writing before the Assistant Registrar on 17.8.2013 and the respondent No. 4 filed his representation on 26.10.2013. The petitioner No. 2 filed reply to the representation filed by Shri Uma Shanker Singh on 2.12.2013. On 18.12.2013 the Assistant Registrar issued fresh notices to both the parties. On 10.3.2014 Shri Uma Shanker Singh-respondent No. 4 raised a preliminary objection to which the petitioner submitted his reply on 27.5.2014. On 30.5.2014 the petitioner No. 3 did not appear as he was suffering from Dengue and sought adjournment. The Assistant Registrar did not accept the request of the petitioner No. 2 and fixed 3.6.2014. On 3.6.2014 again an application was moved by the petitioner No. 2 for fixing a date after 21 days. The Assistant Registrar directed the parties to file their written submissions and to produce the original documents. On 23.6.2014 again an application was moved by the Advocate representing the petitioner No. 2 requesting that a date for next hearing be fixed so that he may file his written submission and produce the original documents. On 30.8.2014 another application was moved on behalf of the petitioner before the Assistant Registrar requesting him that despite several applications, no information about next date fixed has been given. Since the Assistant Registrar was not fixing any date for hearing and no information was given, the petitioner No. 2 moved an application before the Registrar, Firms, Societies and Chits, Lucknow on 1.9.2014 for transferring the case to somewhere else. On 2/3.9.2014 the petitioner No. 2 submitted an application before the Assistant Registrar for cancelling the list of office bearers of the year 2006-2007 and also for providing opportunity of hearing. On 6.9.2014 a reminder was sent to the Assistant Registrar for cancelling the list of office bearers of 2006-2007. On 22.4.2015 the Registrar, Firms, Societies and Chits, Lucknow informed the petitioner No. 2 that his application for transfer of the dispute from Assistant Registrar, Firms, Societies and Chits, Varanasi had been rejected. Thereafter, the Assistant Registrar has passed the impugned order dated 29.4.2015 rejecting the claim of the petitioner No. 2 and upholding the claim of respondent No. 4, giving rise to the writ petition.
Shri Ashok Khare, Senior Advocate appearing for the petitioners submits that on receipt of the impugned order, the petitioner No. 2 inspected the concerned file and found that the Assistant Registrar reserved his orders on 24.6.2014 and even on that date, the hearing did not take place. The Assistant Registrar did not inform the petitioners that he had reserved his order. He submits that on one one hand, the Assistant Registrar recorded a finding that the petitioners failed to produce the documents and on the other hand at internal page-4 of the impugned order, it has been mentioned that after examination of the papers produced by the parties and evidence brought on record, it was found that the Prescribed Authority vide order dated 29.1.2007 had discarded the petitioner''s claim. The Assistant Registrar stated in his order that the petitioner No. 2 did not produce any documentary evidence, which shows that the findings recorded by the Assistant Registrar are self-contradictory.
Shri Ashok Khare further submits that the Assistant Registrar has placed reliance upon the list of office bearers registered on 5.2.2007 pursuant to the order of the Prescribed Authority ignoring the fact that the High Court had already granted an interim order directing that no further action shall be taken pursuant to the order passed by the Prescribed Authority. The Assistant Registrar has deliberately ignored the order of this Court dated 17.7.2013 in which it has been categorically observed that the decision of the Prescribed Authority will have no bearing on the future elections to be held by the Society. The list of office bearers submitted by the petitioners has been discarded on the ground that it was not registered. The Assistant Registrar has failed to exercise the powers given to him under Section 25(2) of the Societies Registration Act. He submits that once the order of the Prescribed Authority is rendered meaningless or redundant and it is specifically observed by this Court that the said order will have no bearing on the election, the Assistant Registrar was not justified at all in relying upon the list of office bearers registered pursuant to the said order of the Prescribed Authority.
Shri Ashok Khare further submits that there was no valid election of the respondents. The election approved by the Prescribed Authority has not been upheld by this Court. Therefore, the Committee of Management had no authority to hold the election in the capacity of outgoing Committee and the only option was to take recourse to Section 25(2) of the Act. The Assistant Registrar has illegally and arbitrarily upheld the illegal election claimed by respondent Nos. 3 and 4. He further submits that a perusal of the order impugned would show that three sets of elections were placed before the Assistant Registrar and in such situation, he ought to have referred the dispute to the Prescribed Authority under Section 25(1) of the Societies Registration Act. The petitioners have been denied proper opportunity by the Assistant Registrar and the Assistant Registrar was bent upon to uphold the so-called election of respondent No. 3, therefore, the petitioner No. 2 approached the Registrar for transferring the dispute.
Shri Ashok Khare submits that the Assistant Registrar had not properly addressed the issues raised by the petitioners in their objection/representation. Under the bye-laws the general body has been given authority to hold the election in given sets of facts. The Committee of Management of respondent No. 4 was not outgoing Committee, therefore, the rights and privileges available to an outgoing Committee were not available to the respondent''s Committee. Therefore, the elections claimed by respondents ought to have been discarded. The respondent No. 4 being a convicted person cannot be allowed to hold the office of Manager in the Society as he is disqualified for holding any office in the Society. The Additional District and Session Judge, FTC, Jaunpur vide judgment dated 27.6.2003 passed in Session Trial No. 354 of 1997 found the respondent No. 4 guilty for offence punishable under Section 307/34 IPC. The respondent No. 4 filed a Criminal Appeal No. 2963 of 2003 in which he had been granted bail and realisation of fine has also been stayed during pendency of the appeal. However, operation of the judgment and order dated 27.6.2003 has not been suspended. The bye-laws clearly prohibit continuance of any guilty person.
Learned counsel for the petitioners submits that the so-called election of the Committee of Management of respondent No. 4 cannot be approved on the ground that the said constitution is not in accordance with the approved bye-laws, which clearly provide for a Committee consisting of 18 members/office bearers including the ex-officio members whereas in the respondents Committee, only 12 members are shown to have been elected and out of those 12, one Bhagwan Singh had died on 3.11.2013. He submits that the impugned order cannot be sustained and is liable to be quashed.
Shri Ashok Khare, Senior Advocate has also submitted that in the matter the Committee, which had already become Kalateet, had no right to hold the election as in capacity of the outgoing Committee. On this account also, the order impugned cannot be sustained.
On the other hand, Shri Manish Dev Singh, learned counsel for the contesting respondent has tried to justify the impugned order on the ground that the petitioner No. 2 namely Shri Vinay Kumar Singh is neither a member of the outgoing Committee nor is a member of the general body and his signature has been accepted by the outgoing Committee. He also precisely submits that the petitioner No. 2 had not submitted any relevant materials i.e. membership register, cash book, and pass book at the time of hearing. Therefore, at this stage, the claim set up by the petitioner No. 2 cannot be sustained.
In the aforesaid matter, the Assistant Registrar has placed heavy reliance upon the list of office bearers registered on 5.2.2007 pursuant to the order passed by the Prescribed Authority, whereas it has also been averred in the writ petition that against the said order dated 29.1.2007 this Court had granted an interim order dated 23.2.2007 directing that no further action shall be taken pursuant to the order of the Prescribed Authority, which clearly gives an impression that the Assistant Registrar, while deciding the issue, had ignored the material fact specially the order of this Court dated 17.7.2013, where it has been categorically observed that the order/decision of the Prescribed Authority will have no bearing on the future elections to be held by the Society in the eyes of law and as such, the list, which was the outcome of the order of the Prescribed Authority, could not have been relied upon by the outgoing Committee (Respondents Committee) on account of the interim order of this Court dated 23.2.2007 passed in Writ Petition No. 9961 of 2007, which was finally dismissed on 17.7.2013 as infructuous with following observations:-
"Heard Shri U.B. Singh, learned counsel appearing for the petitioners and Shri M.D. Singh Shekhar, learned Senior Advocate appearing for the respondents.
By means of this writ petition the petitioners have challenged the order of the prescribed authority dated 29.1.2007 on the ground that the dispute, which is said to have taken place on 18.6.2000, is with regard to the election of the members of the society and the period of which is three years. Since the period of three years has elapsed, the proceeding to decide the dispute had already become infructuous.
In the writ petition initially an interim order dated 23.2.2007 was passed, which is in operation. The dispute is with regard to the election of the members of the society dated 18.6.2000. Now in 2013, the said election cannot be the subject matter of the dispute, as admittedly, the period of three years has long elapsed. So far as the decision of prescribed authority dated 29.1.2007 is concerned, which also have no bearing for any further election that the society will hold.
Therefore, in my view the writ petition has been rendered infructuous by efflux of time.
It is, accordingly, dismissed as infructuous."
Once the rival claims were made, the only course open to the Assistant Registrar was to refer the dispute to the Prescribed Authority under Section 25(1) of the Act. It has also been observed in the impugned order that the list, which had been submitted by the petitioner, had been discarded only on the ground that the same was not registered.
In view of the above, the impugned order cannot be sustained and is quashed.
The writ petition is allowed and the matter is remanded back to the Assistant Registrar, Firms, Societies and Chits, Varanasi to pass an appropriate order strictly in accordance with law within a period of four weeks from the date of production of certified copy of the order after affording an opportunity of hearing to the rival claimants.